278; Edelman v. Locker, D.C., 6 F.R.D. 272.
Since no answer has been filed, the motion filed by the defendant could be considered either as a motion for summary judgment or to dismiss the complaint. In either instance all facts will pleaded in the complaint must be presumed to be true. Williams v. Walnut Park Plaza, Inc., D.C., 68 F.Supp. 957.
The complaint must be viewed in a light most favorable to the plaintiff, and truth of facts well pleaded including facts alleged on information or belief are admitted. Federal Rules of Civil Procedure, Rules 8(f), 11, 12(b), 28 U.S.C.A.following Section 723c.
The complaint should not be dismissed unless it appears certain that the plaintiff is not entitled to relief under any state of facts which could be proved in support thereof. This is true no matter how likely it may seem that the pleader will be unable to prove his case; he is entitled, upon averring a claim, to an opportunity to try and prove it. Continental Colliers, Inc., v. Shober, Jr., 3 Cir., 130 F.2d 631, 635; Carroll et al. v. Morrison Hotel Corp. et al., 7 Cir., 149 F.2d 404.
The Emergency Price Control Extension Act of 1946, 50 U.S.C.A.Appendix, § 901 et seq., does not violate the provisions of the Fifth Amendment of the Constitution. Porter v. Shibe et al., 10 Cir., 158 F.2d 68.
There is only one reported case that I have been able to find in which the constitutionality of the Housing and Rent Act of 1947 has been considered. The United States District Court for the Northern District of Ohio in the case of Creedon v. Cloyd W. Miller Co. declared said Act unconstitutional. 74 F.Supp. 546. It is my understanding that the Housing Expediter has been granted leave to appeal direct to the Supreme Court of the United States, and that the constitutionality of said Act is, therefore, pending before that tribunal.
In this connection, I cannot agree with the ruling made by said District Court since an emergency, without question, exists both as to our economic security and as to the preservation of peace. Due to the circumstances which exist in passing upon the motion made by the defendant, I do not believe any useful purpose would be gained in setting forth the reasons in detail for the opinion which I have expressed that the Housing and Rent Act of 1947 is constitutional.
Counsel for the defendant at the time of oral argument stated, inter alia, that this Court should declare the actions of the Rent Director to be irregular and a denial of the protection of the Fifth Amendment of the Constitution.
An individual is not to be denied the right to question the constitutionality of any provisions of the Emergency Price Control Act, its supplements and amendments. Yakus v. United States, 321 U.S. 414, 64 S. Ct. 660, 88 L. Ed. 834.
However, questions are raised as to the validity of a regulation or the power of the administrator to promulgate a regulation. Such questions can only be considered in a proceeding initiated in the Emergency Court of Appeals. Anchor Liquor Co. v. United States, 10 Cir., 158 F.2d 221; M. Kraus & Bros., Inc., v. United States, 327 U.S. 614, 622, 66 S. Ct. 705, 90 L. Ed. 894; Case v. Bowles, 327 U.S. 92, 93, 98, 66 S. Ct. 438, 90 L. Ed. 552; Lockerty et al. v. Phillips, 319 U.S. 182, 189, 63 S. Ct. 1019, 87 L. Ed. 1339.
For reasons heretofore given, I believe that the Emergency Price Control Act, its supplements and amendments, the Act of July 25, 1946, and the Housing and Rent Act of 1947 are all constitutional.
If the Housing Expediter is able to establish, in whole or in part, the facts as set forth in the complaint, he may be entitled to injunctive relief. In addition thereto, the District Court would have power to order restitution of rents collected by the defendant in excess of the maximum fixed by the Area Rent Director. Porter, Price Administrator, v. Warner Holding Co., 328 U.S. 395, 66 S. Ct. 1086, 90 L. Ed. 1332.
The Housing Expediter has based his claim for injunctive relief in part, as to restitution of rents by the defendant to his tenants, on the basis of a retroactive order. Such an order has been held invalid. Markbreiter et al. v. Woods, Acting Housing Expediter, Em. App., 163 F.2d 993.
However, there are other allegations in the complaint which, if proved, would entitle the Housing Expediter to injunctive relief. Therefore, I believe that the motion to dismiss the complaint should be denied.